Tag Archives: constitutional law

Davenport on Guns: The “Endless Arms Race”

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John Davenport has a piece on gun violence and gun regulation in Salon, “An endless arms race: How to fight the NRA’s absurd solution to mass shootings.”

As we celebrated Independence Day, there was no independence from the scourge of gun violence and the toll it is taking on the American psyche. The shooter who attacked a parade in Highland Park, Illinois, killing six people and wounding at least 38 others, used a “high-powered rifle,” according to authorities. Survivors report a rain of bullets at the height of the attack.

This attack is bound to renew calls for more “red flag” laws that would help identify and disarm emotionally or mentally unstable persons who are making threats of gun violence or praising mass murderers. But would the Highland Park shooter’s online record of participating in “death fetish” culture sites and making art featuring mass killing have been enough for a judge to order seizure of his guns?

Nozick, State, and Reparations

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Talk of reparations has come back into common currency in American political discourse–meaning reparations to African Americans for the wrongs done to them since the beginnings of slavery. I don’t have a fully considered view on reparations (many of the arguments both for and against strike me as one-eyed), but I’ve both been surprised (and in another sense, not surprised) to hear libertarians insist so adamantly that libertarianism rules out reparations. Anyone who thinks this owes it to himself to read or re-read Robert Nozick’s Anarchy, State, and Utopia, if not cover to cover, then through the end of Part I, as I did on a recent plane ride. Continue reading →

Silence of the Lambs

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A statement from New York Governor Andrew Cuomo’s office:

Governor Andrew M. Cuomo today signed legislation (S.4166A/A.1801B) establishing September 11th Remembrance Day. The new law allows for a brief moment of silence in public schools across the state at the beginning of the school day every September 11th to encourage dialogue and education in the classroom, and to ensure future generations have an understanding of the September 11th, 2001 terrorist attacks and their place in history. The law is effective immediately.

Because nothing is more conducive to dialogue and education than silence enforced by legal decree.

Incidentally, though the Governor’s Office disingenuously claims that the law “allows for a brief moment of silence,” the law itself is a mandate, the moment of silence is its only enumerated provision, and Assembly Member Amato refers to it on the Governor’s own statement as a “mandate.” What the Governor means (but doesn’t say) is that the law provides for a mandated moment of silence. Here is the text.

Let Him Not Have Thy Coat (of Arms)

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It is also a federal offense, again carrying a potential penalty of up to six months in a federal prison, if you use the Swiss coat of arms in any advertising for your business. I would include a picture of that coat of arms here so you could see what I am talking about, but I cannot take the chance that I might be sent to prison.

–James Duane, You Have the Right to Remain Innocent, p. 17

Documenting a Police Detention (2): The Long and Short of It

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All history was a palimpsest, scraped clean and reinscribed exactly as often as necessary. In no case would it have been possible, once the deed was done, to prove that any falsification had taken place. –George Orwell, 1984

As readers of this blog know, on November 29, 2017, I was detained and interrogated for several hours by members of the Lodi Police Department and Bergen County Prosecutors Office on suspicion of being an “active shooter.” Though I was not formally charged with a crime, my detention was arguably tantamount to a full arrest: I was involuntarily transported from the original place of detention to a nearby police station, involuntarily held there for a few hours, and involuntarily questioned, despite repeated invocations of my Fifth Amendment right to remain silent. Eventually, I was released without further incident.

A few weeks ago, I sent Open Public Records Act requests to both agencies for documentation of my detention. The Lodi Police Department responded to my request with a 21 page document. The Bergen County Prosecutors Office responded with a one page letter. Both sets of documents are instructive, both for what they say and for what they omit.  Continue reading →

Treason for the Goose

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Isn’t what’s treason for the goose also treason for the gander? I’d have thought so. Maybe that’s why we should avoid making half-baked charges–or half-charges–of treason unless there’s a really good reason for doing so.

As for this…

With the possible exception of an American “levying war” against U.S. troops in a place like Afghanistan, “the biggest-picture takeaway is that there is no treason occurring on any side now,” said Jed Shugerman, a legal historian at Fordham Law School.

Fair enough. But I’d have thought that a good legal historian would enjoy a good hypothetical. For example: if Israel is at war with the Palestinians, and dual national Israeli-Americans join the IDF to shoot at Palestinian-Americans or Americans-in-Palestine, what exactly is the word for that? It’s not treason, I know. It’s not reason, either. But it’s always in season.

I guess there’s a widespread temptation to say “nullum nomen, nullum nominandum” in this case (roughly: “where there is no name, there is nothing to be named”). But maybe there shouldn’t be.

Nervous Shakedown: Scenes from a Police Detention (1)

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On the morning of November 29, 2017, I taught my 8:15 am ethics class in Kirby Hall at Felician University’s Lodi campus. Having taught class, I returned to my third-floor office in Kirby around 9:30. At a little after 10 am, I received a call from Dr. Edward Ogle, the University’s Vice President for Academic Affairs (hereafter, “VPAA”). The VPAA asked me to come to his office immediately, as something “urgent” had come up, offering no further elaboration. I told him I was on my way. I put on my coat and took my wallet, leaving my phone in my desk. As I left the building, I was met by the VPAA in the company of two uniformed officers of the Lodi Police Department. The VPAA asked me to accompany him to his office in the company of the officers, and I did.

On reaching his office, we encountered a third uniformed officer, apparently a sergeant, who said: “You’re not under arrest, but you’re being held.” He then read me my rights. I remember his mentioning my right to remain silent, but don’t remember whether he informed me of a right to have an attorney present. He then asked whether I understood my rights. I said I did. He asked me whether I was willing to discuss the matter at hand. “No,” I said. “Well,” he said, “that makes things easier,” walking into a nearby hallway to make a phone call. I heard only one sentence from the sergeant’s end of the call: “Nothing. He hasn’t said anything.” Which was true enough, and stayed that way all afternoon. Continue reading →

Congratulations to Gurbir Grewal

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Congratulations to Bergen County Prosecutor Gurbir Grewal for his nomination to the position of Attorney General of New Jersey by Governor-Elect Phil Murphy.

I got to know Gurbir last year when he spoke at the series on “Race and Criminal Justice in America” that I organized at Felician University; I was deeply impressed then, and remain impressed now, at his capacity to walk the fine line between prosecutorial toughness about enforcing the law, and moral sensitivity to considerations of justice. It’s a tough balancing act, but I sleep better at night knowing that someone knows how to pull it off. Because I certainly don’t.

Gurbir Grewal speaking at Felician University, December 5, 2017

Continue reading →

“My Circuits Gleam”: A Fourth Amendment Query

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A legal question for Fourth Amendment lawyers out there:

It’s settled law that if you’re in a Terry stop, you have a duty to comply with the orders of the officer who stops you. Likewise, if you receive a summons or citation from court, you’re obliged to respond. Etc.

But suppose that you (somehow) discover a listening/video device planted or inserted in or on an object that would ordinarily be protected by the Fourth Amendment, e.g, your car, your home, your computer, your phone. You surmise that the device was put there by the government in order to spy on you–but can plausibly assert (whether truthfully or not) that you don’t know for sure who put it there. Are you obliged to “comply” with government surveillance by analogy with a Terry stop? In other words, are you obliged to let government surveillance continue without interference after you’ve discovered that it’s taking place? Or can you destroy or disable an A/V device on the grounds that no officer was present to give you an order to comply with anything?

If you do destroy/disable the device, and the device was there through a procedurally correct search warrant, can you be held criminally liable for undermining the government’s attempt to surveil you? There is, after all, no way for the person under surveillance to know that the surveillance in question had the authority of a warrant.

My potentially archaic terminology of a “listening/video device” conjures up Cold War imagery of “bugs,” but I really mean: any discoverable form of electronic surveillance (e.g., a GPS device that you find attached to your car). The issue overlaps with encryption law, but encryption pre-empts surveillance before it takes place, rather than disabling surveillance that’s currently under way–and I’m thinking about the latter. The issue I have in mind strikes me as slightly more analogous to possession of a radar-detector than to the use of encryption, but that analogy breaks down pretty quickly as well.

Hence the question, as it seems a distinctive sort of case. The issue is not addressed in the very basic criminal procedure textbook I use, Matthew Lippman’s Criminal Procedure: the textbook assumption seems to be that electronic surveillance almost always goes undiscovered by the target. (I own the second edition of the book [2013], not the most recent one.)

Analogous issues may seem to arise for physical surveillance, but I don’t think they do: for the most part, if you’re under physical surveillance out in public space, you’re in plain view: you can act as you please (within the normal limits of the law), and so can the government. In that case, you have the right to go out of plain view, in which case they have the right to search or seize you if they have reasonable suspicion that you’re committing a crime. But that’s just a Terry stop, so it raises no new issues.

I’ve been surveilled twice by drone (by Israeli rather than American authorities). I’ve always wondered what would have happened, legally speaking, if I’d found a way to knock the drone out of commission, and pretend that I had no idea who had sent it. Of course, practically speaking, I kind of know what would have happened.

(Thanks to John Semel for the link to the GPS story above, and for some helpful comments on Facebook.)

Talking Treason

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The U.S. Constitution defines “treason” as follows (Article III, Section 3):

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

It’s not the only possible way of defining treason, but it’s the legally accepted definition of treason in the United States. Treason is a crime, and like all crimes, those accused of it enjoy a presumption of innocence until proven guilty in a court of law. Since it’s a capital crime, punishable in principle by death, the presumption of innocence matters even more than it ordinarily would, not that the presumption is any less applicable to non-capital crimes.* Continue reading →